Standing Committee D

[Mr. Frank Cook in the Chair]

International Criminal Court Bill [Lords]

New Clause 2 - Government responsibility to maintainlaw and order

`Nothing in the ICC Statute shall affect the responsibility of the Government to maintain or re-establish law and order in the State, or to defend the unity and territorial integrity of the State, by all legitimate means at its disposal.'.—[Mrs. Gillan.] 
 Brought up, and read the First time.

Cheryl Gillan: I beg to move, That the clause be read a Second time.
 In proposing new clause 2, I would like to apologise to the Committee for my unavoidable absence this afternoon. The Government, in their wisdom, have timetabled a discussion on the Floor of the House that means that I am required elsewhere. The fact that I will not participate in the final sitting is meant as no disrespect to the Chair, the Minister, or any member of the Committee. 
 As you can see, Mr. Cook, I am not rigged for silent running—I am running rather noisily. I would like to thank you for good-naturedly chairing the Committee. Last week British Gas mistakenly informed my husband that I was the late Cheryl Gillan; in the course of proceedings, I know that you have been called the late Mr. Cook, but I hope that you will never be described as I was—not in the next 10 years, at least. 
 I thank the Ministers for their forbearance and their constructive and informative approach to the Bill on most occasions—[Interruption.] If the Solicitor-General finds that the cap fits, I am sure that he will wear it. Even in their absence, I thank my hon. Friends for providing strong support, and I thank my hon. and learned Friend the Member for Harborough (Mr. Garnier) for ably leading the discussion on the delicate legal issues arising from the Bill. I thank everybody for their help and support, and I am sure that this afternoon will proceed even more rapidly without me. 
 I hoped that the Minister of State, Foreign and Commonwealth Office, would seriously consider accepting new clause 2. He has not approached me, so I presume that there is not a snowflake's chance in Hades of him accepting it. However, it would include in the Bill almost the identical words as those in article 8.3 of the Rome statute, which reads: 
 ``Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.'' 
The new clause reiterates that, but widens it slightly. It reads: 
 ``Nothing in the ICC Statute shall affect the responsibility''. 
I presume that that is the intention of article 8.3; the new clause is our interpretation of it. 
 The purpose of the new clause is to offer protection. Earlier this week, we saw a first-class job carried out by our police service in controlling a potentially serious and riotous situation on the streets of London—civil unrest. The police are to be congratulated on a successful operation carried out legitimately and against the background of last year's similar protests and violence, which resulted in mayhem and fairly dreadful criminal activity on the streets of our capital city. 
 The purpose of the new clause is to highlight the circumstances surrounding civil disorder and the actions that any future Government may need to take to keep the peace and to defend the country. We are trying to ensure that the country can maintain control over its internal matters without the inhibition of potential interference from the ICC. In circumstances involving an event of greater gravity than this week's demonstrations—in Northern Ireland, for example, or in any other part of the UK for that matter—it is important to ensure that the ICC could not begin an investigation, raise charges or issue warrants to prosecute personnel who had been engaged in any controlling activity. 
 The matter was pursued in another place by my noble Friend Lord Howell of Guildford, who expressed it extremely well vis-a-vis Northern Ireland. I have no hesitation in referring to his words. He said: 
 ``The current inquiry into the events of Bloody Sunday in 1972 in Northern Ireland is revealing various new facts and aspects''— 
as all members of the Committee will be aware. He continued: 
 ``It could conclude that no further action is justified and all the truth, rumours and legends have come out. Our Government would then decide that that was the end of the matter. Could the International Criminal Court then step in on such a matter of civil order and pursue the investigations on the grounds that they had not been dealt with thoroughly enough? The amendment''— 
the drafting of which is the same as the new clause— 
``would ensure that should another such event occur . . . and should the animosities, miseries and hatreds of that event be perpetuated, the Government would be within their rights in maintaining and establishing law and order throughout the United Kingdom.''—[Official Report, House of Lords, 12 February 2001; Vol. 622, c. 50.] 
The Government's response to the amendment in the other place was brief: they merely gave an assurance. Conservative Members still feel that it should have been included in the Bill and, given that the Minister is so keen to follow the statute, cannot understand why it has not been so included. When people examine the legislation in future, it is surely better that the Government's intentions in formulating it should be clear. If there is no problem with the new clause—which is the impression that I gained from the Government's reaction in the other place—I do not understand why the Minister cannot accept it, and must ask him to explain.

John Battle: The new clause repeats the language of article 8.3, except that the phrase
 ``Nothing in paragraph 2(c) and (e)'' 
is replaced with 
 ``Nothing in the ICC Statute''. 
It concludes with the words ``at its disposal.'' I put it to the hon. Member for Chesham and Amersham (Mrs. Gillan) that the new clause would have absolutely no legal consequence whatsoever. Keeping the big picture in mind, we must always remember that the Bill will not be retrospective. When the hon. Lady referred to the inquiries in Northern Ireland, she read the words, ``should another such event occur''. That was helpful, because the Bill covers only future events, not those that have already happened. That applies even to inquiries into current events. 
 I am happy to give the hon. Lady the assurance that the Opposition seem to be seeking: nothing in the ICC statute affects the Government's responsibility or ability to maintain law and order and national defence by legitimate means. For the avoidance of any doubt, article 8.3 of the statute, which relates to war crimes and internal conflict, provides the cover. We should note that the same reassurance is given in additional protocol 2 to article 3 of the Geneva conventions, to which we are party. Of course we believe that it is important for the ICC to have jurisdiction over crimes committed in internal armed conflicts. The vast majority of conflicts in today's world are not between states but internal, within countries' borders. The provisions in the Rome statute and additional protocol were designed to give states reassurance that the specific provisions regulating internal armed conflicts in no way affect their responsibilities to defend their territory and maintain law and order by legitimate means. 
 Such a reassurance is appropriate in an international treaty, but it would be entirely unnecessary and inappropriate to replicate such a provision in domestic criminal legislation. That is not just the Government's view; there is common precedent for it. As we have already mentioned, the Geneva Conventions (Amendment) Act 1995, which implemented the two additional protocols to the Geneva conventions, was passed and agreed to by the previous Government. That Act did not repeat nor specifically refer to article 3 of additional protocol 2 for an obvious reason: it would have been unnecessary. 
 I see no reason to depart from the previous Government's stance on such matters. There are no substantial or convincing arguments that Opposition Members have actually changed their minds on it. I hope that that will reassure the hon. Lady that the amendment is unnecessary, and that she will feel able to withdraw it.

Cheryl Gillan: The Minister's response is not unexpected and, at the very least, highlights the need for future interpreters of this law—when it becomes law—to ensure that the treaty is read alongside it. More importantly, our consideration of the Bill in Committee will play an important role in such interpretation, and confirm the Government's pick-and-mix attitude to the statute. Pepper v. Hart was a sensible ruling.
 It still seems illogical for the Minister to rely on something that is in the statute of Rome and not included in the legislation, and to assure us that it is taken into consideration and implied in the Bill, when he rejected, for example, new clause 1 and the operation of article 124 of the statute. I do not want to turn this into a workshop on article 124, on which we have already had lengthy discussions, but it seems that there are inherent dangers in the Government's approach to the ratification process. They rely on wording contained within the statute on one occasion but not on another. That leaves potential difficulties for future generations. 
 The Minister has, however, revealed his hand. I am sure that he has strict riding orders not to accept any form of amendment to the Bill. I therefore beg to ask leave to withdraw the motion. 
 Motion and clause, by leave, withdrawn.

New Clause 3 - Defence against unlawful use of force

``(1) A person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for survival of the person, or another person, or property which is essential for accomplishing a military mission, when he acts against an imminent and unlawful use of force in a manner proportionate to the degree of danger to that person, or the other person, or property protected.
 (2) A person may rely on the above defence if he can establish, on the balance of probabilities, that he was acting as part of a defensive operation and/or there was a necessity to act in this way.
 (3) It shall be a defence to any allegation under the ICC Statute, that the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been—
(a) caused by duress resulting from a threat of imminent death or constituting imminent serious bodily harm against that person, or another person, and
(b) the person acts necessarily and reasonably to avoid this threat.''.—[Mr. Garnier.]
 Brought up, and read the First time.

Edward Garnier: I beg to move, That the clause be read a Second time.
 The new clause would create a defence against what would otherwise be an unlawful use of force, or one that was alleged to be unlawful. It would allow a person to defend himself, others or property if it were 
``essential for accomplishing a military mission''. 
There are many obvious examples of such a thing. 
 Subsection (2) sets out the defence 
``on the balance of probabilities'', 
which is, as I think that we would all accept, the test for establishing any defence in criminal law. 
 Subsection (3) creates a defence 
``to any allegation under the ICC statute'' 
about a person's conduct. The defence of duress from 
``a threat of imminent death or . . . imminent serious bodily harm'' 
is created. Subsection (3)(b) refers to a person acting 
``necessarily and reasonably to avoid this threat.'' 
As Conservative members of the Committee have mentioned before, we are concerned about the conduct of our armed forces, and the new clause has their concerns in mind. It cannot be right to have no defence available that one was defending oneself or others in what the ICC would otherwise judge as an unreasonable use of force. 
 I am acutely aware of clause 56 of the Bill, of article 31 of the statute of Rome, of section 3 of the Criminal Law Act 1967, and of the common law. Although I am somewhat reassured by existing English law, we must consider the context of the new ICC jurisdiction and the way in which it will touch on prosecution of our own subjects or those who are likely to be tried in English courts under the complementarity rule. I therefore seek reassurance that the Government have those points in mind, and will be able to translate the current state of English criminal law into the new jurisdiction.

Ross Cranston: I can give the assurance that the hon. and learned Gentleman seeks. We have deliberately not introduced into the Bill the defences available under article 31 of the ICC statute. As the hon. and learned Gentleman has said, we are incorporating domestic law defences under clause 56—an approach adopted in previous legislation such as the Geneva Conventions Act 1957—because existing defences under our own law, which the courts use every day, are the best defences for individuals. Of course, under domestic law, defences of self-defence and of duress already exist.
 I am sure that the hon. and learned Gentleman's assertion that the defendant must establish the defence of self-defence on the balance of probabilities was a slip of the tongue. If the issue is raised, the onus is on the prosecution to exclude that particular defence. Any move away from such a defence would reduce the protection of individuals.

Edward Garnier: I wish it had been a slip of the tongue. I relied blindly on speeches made in the other place, and I wish that I had been a little more careful in my preparation.

Ross Cranston: The hon. and learned Gentleman realises that the onus is on the prosecution to exclude the defence of self-defence—a principle set out in section 3 of the Criminal Law Act 1967 and in common law. The substance of subsection (1) of the new clause is therefore already dealt with in domestic law, as is the substance of subsection (3), given that duress is also recognised in domestic law.

Gerald Howarth: Can the Solicitor-General remind me whether the principles underlying Pepper v. Hart apply to proceedings in Committee, as well as to ex cathedra statements by Ministers at the Dispatch Box on the Floor of the House?

Ross Cranston: Yes, Pepper v. Hart covers statements made in Committee. Defences available in domestic law are incorporated into the statute only where the legislation is ambiguous, but in this case the legislation is clear.
 Given that the new clause does not pick up certain defences such as intoxication and mental incapacity, it could be argued that it would reduce the protections available to individuals under our law on the principle that by specifying certain defences, other defences, which are recognised by our domestic law, would not be available under the Bill. There is therefore a danger that the new clause would be self-defeating. 
 We do not pick up the defences specified in article 31, and, as I have said, domestic law recognises all of them. It could be argued that we are not dealing adequately with defendants, which returns us to the complementarity argument. If we do not deal with people properly, the ICC can say that it has jurisdiction under article 17, which is another problem with the new clause.

Gerald Howarth: Is the Solicitor-General saying that notwithstanding the fact that there is no defence of intoxication in our domestic law, because article 31 specifically provides for that defence, our courts would also be required or able to rely upon that in respect of someone being tried in the United Kingdom?

Ross Cranston: The position on intoxication in our domestic law is quite complicated. There is limited recognition of a defence of intoxication, but it depends on whether the intoxication is voluntary or involuntary. It also depends on an arcane aspect of our criminal law as to whether the offences are ones of basic or specific intent. In as much as there is a defence of intoxication under article 31, I can give the assurance that that is reflected in our domestic law.
 The only difference in terms of the new clause moved by the hon. and learned Member for Harborough concerns the provision about defensive operations. In moving the clause, he has picked up the language of article 31, but used it in the opposite way to that intended in the Rome statute. Article 31.1(c) states: 
 ``The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph''.
 That is fairly straightforward. Our armed services are not involved in aggressive, as opposed to defensive, operations. That sort of defence, which is encapsulated in the new clause, is unnecessary. Incorporating it would be inconsistent with our obligations under the statute. 
 The defence encapsulated in the new clause is not recognised in our domestic law.

Gerald Howarth: I am hugely heartened by the Solicitor-General's confidence that British troops will not be involved in defensive action.

Ross Cranston: No—the other way round.

Gerald Howarth: We would not be able to be involved in any aggressive action. I am sorry; I misunderstood the hon. and learned Gentleman.

Ross Cranston: In conclusion, I assure the Committee that those defences are available in our domestic law, save for that one exception. Previous Governments also adopted our approach, and on that basis I ask the Opposition to withdraw the new clause.

Edward Garnier: We had two purposes in initiating this debate. One was intentional, the other was not. The main intention was that we should hear the assurances that the Solicitor-General has given us, for which I am grateful. The other purpose, the unintentional one, was to demonstrate that I had not done my homework. I beg to ask leave to withdraw the motion.
 Motion and clause, by leave, withdrawn.

New Clause 4 - Reporting of consultation between the ICC and Secretary of State

`The Secretary of State shall, following any consultation prior to any proposed warrant, or actual warrant, from the ICC, lay a report before the Foreign Affairs Select Committee of the House of Commons, or any ad hoc committee of that Committee, setting out in particular—
(a) the nature of the proposed warrant;
(b) the grounds for refusal to accept the warrant; and
(c) any reasons given by the Secretary of State why he considers that a warrant should not be issued, or that the case has been dealt with and/or, that the case will be dealt with under United Kingdom jurisdiction.'.—[Mr. Garnier.]
 Brought up, and read the First time.

Edward Garnier: I beg to move that the clause be read a Second time.
 The new clause allows me once again to take out of the Committee stable my hobby horse on the problem of trying, when debating legislation, to get some purchase on a treaty—which, of course, we cannot do. I hope that the Committee will take as given my concerns about that; perhaps they could read earlier copies of the Official Report.

John Battle: We are well aware of them.

Edward Garnier: I am glad to hear that the Minister is well aware of my concerns. I have a suspicion that he increasingly shares them.
 The Opposition's worries about the issues lying behind the new clause were well explained by Lord Howell of Guildford in the Committee proceedings in the other place on 12 February, starting at column 115. I shall briefly paraphrase his arguments, and invite the Minister to respond a little more fully than did Lady Scotland of Asthal. 
 New clause 4 is self-explanatory. It allows a brief discussion on the issues that we have already discussed. It is a continuing concern of mine, as I have tediously mentioned, that we are debating these matters in a vacuum. The Government should be aware of the concerns of this legitimately elected Parliament that it can do nothing about how the Government exercise their prerogative powers. The new clause attempts to make some headway in redressing the balance between the powers of Government and of Parliament. 
 I have no doubt that it is much celebrated in the Labour party, but it is much regretted by the Opposition, that there has been a huge change in the balance of power between Parliament and the Executive during the past four years. Parliament has almost become a rubber stamp for the activities of the Prime Minister's official spokesman.

Tony Worthington: The hon. and learned Gentleman will have to improve his performance.

Edward Garnier: I did not know that the hon. Gentleman was performing; he has yet to get on to the Richter scale in this Committee.
 We saw a wonderful example of how the Executive completely overrides Parliament during yesterday's Prime Minister's Question Time.

Frank Cook: Order. I am having difficulty working out how the hon. Member's comments relate to new clause 4.

Edward Garnier: Let me ease your difficulty, Mr. Cook. You might remember that, on Tuesday, I discussed the opinions of the French and New Zealand Governments on whether the use of nuclear weapons came under the definition of war crimes in article 8 of the statute. It seems highly relevant—to Conservative Members, at least—that the United Kingdom is one of the few nuclear powers and that the decision to launch a nuclear attack in response to such an attack on us or for another legitimate strategic military reason lies with only one person: the Prime Minister. Entirely coincidentally, a question arose yesterday as regards the announcement by the President of the United States about the nuclear shield.

Frank Cook: Order. I understand all that—I lived through it. However, I am still puzzled as to its relevance to the issue of reports and consultation between the ICC and the Secretary of State.

Edward Garnier: If the Prime Minister decides to send off nuclear missiles, and civilians are killed as a consequence, he could, if one agrees with the New Zealand Government, be guilty of a war crime. However, if one agrees with the French Government, he could not be. I am using shorthand, but if the New Zealand argument wins the day, the ICC might require the Prime Minister to respond to the warrant. New clause 4 refers—surprise, surprise—to the delivery of warrants, although not to the delivery of nuclear weapons. However, in the context of the Bill and the ICC's jurisdiction, one cannot dissociate oneself from the two.
 It is interesting that even in huge strategic military questions—

Mike Gapes: Will the hon. and learned Gentleman give way?

Edward Garnier: In a moment; I am having fun. Even when dealing with matters of huge importance, such as the use of nuclear weapons, one cannot wholly forget that the ICC will have to have procedures that bite on the potential defendant if it is to work.
 The treaty is unamendable, but the Bill is not. The Bill is the only means that we have to inform the world of our concerns about the way in which the treaty exposes the Prime Minister, who has the nuclear key. 
 A moment ago, I mentioned Mr. Alastair Campbell—by inference, if not by name—because he seemed to take a different and more powerful view of protection against nuclear weapons than the Prime Minister.

Mike Gapes: The circumstances that the hon. and learned Gentleman envisages are ridiculously remote. Does he accept that any decision to fire nuclear missiles from this country would involve retaliation, and that our NATO allies would have a view about that? Furthermore, if there were any retaliation, the last thing that anyone would be worried about would be serving warrants. Presumably they would be more worried about radiation fallout and millions of dead people.

Edward Garnier: That is an interesting point. If the last thing that we should be thinking about is serving warrants, what is the point of the Bill and the statute? That comes back to very point that I made on Tuesday, although the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) was exercising his customary absence, no doubt for important reasons. He did not seem to take my point. The statute works only with the exercise of military power behind it. [Interruption.] You know, Mr. Cook, from my performance this morning, that none of this has been rehearsed.

Frank Cook: I could be persuaded otherwise.

Edward Garnier: I do not want to engage in side discussions outside the terms of the Bill, but as I understand it, the only choreography that has been engaged in between political parties with respect to the constitution of the United Kingdom—and certainly with reference to the British mainland—has been between the Liberal Democrat and Labour parties. The Conservative party has maintained a healthy distance from both. [Interruption.] I am being diverted. I promised the Committee a brief discussion on the new clause. The Minister is well aware of the points raised in the other place in support of the new clause. I enjoyed my brief discussions with the hon. Member for Ilford, South (Mr. Gapes) and others, including you, Mr. Cook, although, now that I have done that, my reputation is in danger of becoming something other than I should wish.

John Battle: I thank the hon. and learned Member for Harborough—

Frank Cook: Order.

John Battle: I apologise, Mr. Cook. I shall try to remember to face you and not the Back Benches.
 The hon. and learned Gentleman moved the amendment with refreshing and characteristic frankness, but buried in his wide-ranging comments was a theme that he has consistently presented to the Committee and that goes wider than the Bill: the relationship between the powers of Government and Parliament. He has also consistently raised the way in which we sign up to statutes internationally, procedures by which we might change them before they come before us, and our relationship to them. Those are largely legitimate questions that might be raised elsewhere in the House in the future. 
 The new clause would require the Secretary of State, following consultation with the ICC, formally to lay before the House of Commons a report on a proposed or actual warrant. As the hon. and learned Gentleman acknowledged, Lord Howell of Guildford introduced an identical provision in Committee in the other place. The premise on which the new clause appears to founded is the Secretary of State's refusing a request for surrender. It is important to mention that, because I cannot emphasise enough the question of complementarity: the court comes into play only if this country refuses—if it is unable or unwilling—to take action. 
 I assure the Committee that, when appropriate, matters relating to requests from the ICC will be brought to the attention of Parliament in the usual way, without the need for a report to be formally laid before Parliament. That has been the practice on many occasions in the past. It is what happened in the case of General Pinochet: the reasons for the decisions of my right hon. Friend the Home Secretary were brought to the attention of the House and the usual procedures were used; private notice questions and other mechanisms were employed. The procedures under the new clause for laying an additional report before Parliament could undermine the effectiveness of a proposed ICC warrant. 
 I shall give an example from a real case involving a warrant issued by the international criminal tribunal for Rwanda for the arrest of a Rwandan person accused of genocide. We were aware for some months before the warrant was issued that the person was likely to be indicted. Had we been following the procedures proposed in new clause 4, we should have had to lay a report before the Select Committee on Foreign Affairs giving details of the proposed warrant. That report would, no doubt, have excited press interest and examination, greatly increasing the likelihood of the suspect absconding. If the procedure were to become as formalised as is specified in the amendment, it could be self-defeating. 
 In addition, we should remember the principle of complementarity, which will ensure that the ICC will be able to assume jurisdiction only when a state is found to be genuinely unwilling or unable to conduct an investigation. We do not anticipate being in that position. The Rome statute was the result of delicate negotiation. A balance had to be achieved that would protect our service personnel, but allow the ICC to retain its teeth in relation to states that might try to carry out domestic investigations in bad faith in order to protect their own personnel. The balance is right. We do not need to introduce the new clause and to do so might undermine the procedures that we want to see followed.

Edward Garnier: I am crushed. I beg to ask leave to withdraw the motion.
 Motion and clause, by leave, withdrawn

New Clause 5 - Ratification: reservations and declarations

`The Secretary of State shall not ratify the ICC Statute unless—
(a) a report is laid before Parliament, setting out—
(i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,
(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and
(iii) that report is approved by each House of Parliament.'.—[Mrs. Gillan.]
 Brought up, and read the First time. 
 Motion made, and Question put, That the clause be read a Second time:—
The Committee divided: Ayes 5, Noes 12.

Question accordingly negatived. New Clause 8Amendments of the ICC Statute

New Clause 8 - Amendments of the ICC Statute

`If an amendment is adopted to the ICC Statute under Article 121, within six months of the meeting of the Assembly of States Parties which adopts such amendment Her Majesty's Government shall obtain approval for such amendment by positive resolution of both Houses of Parliament, failing such approval being given six months after the meeting of the Assembly of States Parties Her Majesty's Government will give notice for withdrawal under Article 127.'.—[Mr. Blunt.]
 Brought up, and read the First time.

Crispin Blunt: I beg to move, That the clause be read a Second time.
 We have had a limited discussion about the power of the Executive and Parliament. The new clause champions the role of Parliament and gives it the opportunity to discuss any amendments to the Rome statute that might be made under article 121. 
 It is almost certain that the statute will be amended at some point. For example, we discussed earlier the possibility of the court's being used as the medium through which to police the international drugs trade. The Minister said that that was an interesting idea. It is not on the agenda at the moment, as the court is currently establishing itself as the forum for the most serious crimes—those listed in articles 5, 6, 7 and 8. However, we do not know how the court will develop; we all hope that it will become an important instrument for the control of crime.

John Battle: I did not mean to suggest that the ICC per se should tackle the international drugs trade, but that some international forum should be charged with that challenge. It does not necessarily come within the ambit of the ICC. We might need to establish another institution to do it, and I am open to ideas. I would not want to give the impression that I had suggested that the ICC could move forward on that basis.

Crispin Blunt: Equally, however, the Minister did not say that the ICC could not move forward on that basis. I am not trying to imply that the Government have committed themselves to that end: I presume that they are considering all available options for policing problems such as the international drugs trade.
 Everyone in the Committee wants the court to develop as an important and significant institution. To do that, it will have to work properly and politically responsibly. If it is to establish itself and become a long-term institution, it must have the ability to change its rules and procedures as it develops over time. Article 121 sets out the procedure for doing that. 
 Parliament's problem with any treaty is that the Government have the right not only to sign treaties, but to ratify them under the royal prerogative without reference to Parliament. That practice has been limited under the Ponsonby rule to allow Parliament the opportunity to discuss treaties. However, the briefing on the Ponsonby rule in the Library brief that accompanies the Bill makes it clear that: 
 ``The Ponsonby Rule and associated practice are not in any way a derogation from the rule that the treaty-making power comes under the Royal Prerogative, since Parliament is not being asked to approve the treaties which are laid. It is merely being given an opportunity to discuss them, to interrogate the executive over its exercise of its treaty-making power.'' 
That is the formal position. However, if the Government were defeated on the Bill, I do not imagine that they would ratify the treaty. For example, if the Prime Minister were to go to Her Majesty on Tuesday to seek Dissolution of Parliament and Parliament were dissolved immediately, the Bill would be lost, because there would not be sufficient time for further necessary consideration of it. Whether a Conservative Government are elected or, by some appalling accident, a Labour Government are re-elected, no Government would ratify the treaty until they have put the Bill or one like it through Parliament. 
 That is the position de facto. However, it does not necessarily apply to amendments to the statute. Those can be made whether or not the United Kingdom is in favour of them—it does not have to be, because if they do not apply to the definition of crimes under articles 5, 6, 7 and 8, such amendments can be approvedby a seven-eighths majority of the states parties. That could lead to the majority of those who are affected by the statute being outvoted by countries representing a minority of those affected.

John Battle: San Marino?

Crispin Blunt: We shall come back to San Marino later, when we discuss universal jurisdiction.
 The simple purpose of my new clause is to allow Parliament to bind the Executive. If the institution works in the way it should, the legislation will apply for decades to come. When the Executive, whoever they are, agree amendments to the statute of Rome, they will have to come back to Parliament within six months to get the approval of both Houses. 
 We know how important the statute is, and the scope of the crimes that it covers. I have given one example of how the institution might develop, and the Minister has not denied that it might develop in that way. Although it is not the policy of this or any other Government that the ICC should develop in such a way, it has the potential to do so, if the states parties so agree. The changes to the statute would and could be fundamental to the way in which we police international crime in future. Although the United Kingdom Executive can currently veto changes effected under the definition of crimes, which is extremely important, they do not have a veto on how the court operates. 
 The court's operation may be subject to changes that we do not like, but that may be imposed on the United Kingdom. Changes to the statute could be controversial in this country. It is proper that Parliament should now give itself the power to ensure that it formally approves changes to the statute of Rome. That is all that the new clause is designed to do. Its trigger would ensure that the Government had to obtain the approval of both Houses of Parliament within six months of the adoption of an amendment to the ICC statute. The new clause states that if they did not, they would have to 
``give notice for withdrawal under Article 127''. 
That would force the Executive to receive Parliament's approval for their actions in Parliament. 
 The new clause is a necessary provision, so the Committee should add it to the Bill. We do not know who the Executive will be next month, next decade or five decades from now, yet the institution that the Committee will in part be responsible for establishing will probably last that long. We should protect Parliament from future Executives. I hope that the Committee will accept the new clause.

Robert Maclennan: The new clause seems less modest than it appears at first, but I have a deal of sympathy with the spirit that informs it. It is not satisfactory that major changes can effectively be enacted by international organisations without the democratic bodies that are a constituent part of those organisations being fully informed.
 The hon. Member for Reigate (Mr. Blunt) thinks it desirable—it is a consequence of his solution—that the British commitment to the International Criminal Court should cease if an amendment to its operation has not been approved by Parliament. I do not entirely agree. He has raised a conundrum and may be trying to change the constitution of the United Kingdom by a side wind. In the past, our courts have held that to be an unsuitable way in which to proceed. However, he has raised an issue of great importance—one to which Parliament ought to return in a wider context. The formulation of treaties and what flows from them follows Crown prerogative and has gone too long unchallenged by this Parliament. It has come under much closer scrutiny in the context of the European Union and we now have procedures that enable us, if we choose, to examine what is happening there. We could usefully extend that to other spheres in which we are internationally committed of our own volition to agreements that have long-lasting effects on and long-lasting consequences for the sovereignty of the state. I hope that in disassociating myself from the hon. Gentleman's request that the Committee accepts the new clause, he will not misinterpret my sympathy with what he is doing.

Crispin Blunt: I am grateful to the right hon. Gentleman for his principled support for the new clause. I have listened carefully to his arguments and I understand his objection to the hurdle of giving notice of withdrawal under article 127, which I included in the new clause to force the Government to act. That hurdle might make the new clause appear hostile to the ICC. If the right hon. Gentleman can suggest another form of leverage over the Executive that could be included in a new clause to force them to obtain the approval of both Houses, I would be happy to consider it and return to the idea on Report—hopefully, with his support.

Robert Maclennan: That raises wider questions about the desirability of enacting the legislation and the difficulties that lie in the way. I am unsympathetic to the idea that in that instance alone we should examine ways and means of obstructing by unilateral decision the development of institutions in whose establishment we have participated. We must have some kind of collective decision-making process, which is provided for in the statute of Rome by the assembly and so forth. What is lacking is a procedure for referring the proposals and communicating the Government's attitude to them to Parliament for deliberation, which would not necessarily mean a decision by the legislature in opposition to the Executive.

Edward Garnier: I do not want to take the right hon. Gentleman by surprise or to present him with words that he may not have examined recently, but I refer him to the comments of his noble Friend Lord Lester of Herne Hill, who during deliberations in the other place stated:
 ``I believe that there are limits to democratic accountability. In the field of European Union law, rightly we have very deep scrutiny—for example, in this House—because legislation which emanates from the European Union is often directly binding on this country without the need for Acts of Parliament. However I do not believe—nor do I consider that my party would believe—that we should go so far with democratic scrutiny as to say that, whether in relation to this or any other treaty, the executive branch cannot ratify unless any reservation or declaration has first been laid before each House by report and approval.''—[Official Report, House of Lords, 20 March 2001; Vol. 623, c. 1296.]
 I can easily see that there is a distinction between reservations and declarations, but there is a principle there that seems to lie across the right hon. Gentleman's comments.

Robert Maclennan: Yes, it is perfectly possible. I am familiar my noble Friend's words and I have discussed those matters with him. There may be a slight difference of emphasis, but it would not be practical to give similar powers to all the signatory states of a treaty such as the statute of Rome to allow their legislature to bring about the piecemeal disruption of a process agreed by a large number of states.
 However, when the Government, who determine the response to any amendment proposed to the documents following the establishment of the ICC, are formulating that response, it is reasonable that Parliament should be informed and have the opportunity to debate, consider and give its opinion. I do not accept that Parliament should have a right to override: that would take us closer to giving this House the power of the Senate of the United States, to block by refusal of advice and consent an international engagement into which the Executive are willing to enter. My position is to some extent a halfway house. I think that the hon. Member for Reigate is recommending something that is closer to the power of the Senate of the United States.

Crispin Blunt: We do not have a system of separated powers as in the United States. The Executive here is present in Parliament; if they could not command a majority in Parliament for an amendment to the ICC, that would probably be a matter of confidence, triggering an election. I do not, therefore, accept the right hon. Gentleman's suggestion that we are setting up a body analogous to the United States Senate, as the American constitution lays down the separation of powers.

Robert Maclennan: If we were to accept new clause 8 it would in effect give the Houses of Parliament the opportunity to defeat the wishes of the Executive. I do not think that that is desirable. Whether it would be a matter of confidence would depend on the attitude of the Government. A single defeat of the Government does not necessarily mean that they have lost the confidence of Parliament.
 I have made my position clear and do not want to labour the point. The hon. Gentleman has triggered a useful debate and I hope that other Committees that are examining scrutiny of the Executive will return to the matter, especially in the area of treaties. The upper House considered the matter, but felt that it was not well placed to take up such scrutiny because of limited resources. I do not think that we should resile from the need to take the matter further as soon as possible.

Gerald Howarth: The right hon. Gentleman has acknowledged that the debate is important. I have been interested to follow the arguments of the Liberal Democrat party, which I thought was in favour of greater openness and accountability. Undoubtedly, new clause 8, to which my name is also attached, goes some way to providing greater accountability, if not more scrutiny.
 The Committee cannot change the rules on how the House of Commons handles treaties. However, it is legitimate for us to consider the new clause within the structure of debates on the Bill and the statute of Rome. The fact that we are in Committee today enacting legislation means that, although the statute itself is not amendable, Parliament can, if it so wishes, say that it does not believe that Her Majesty's Government should have signed up to the statute and that it expresses its dissent to their actions by rejecting the Bill. 
 The prerogative of treaty-making is not inviolate. If we had advanced a comprehensive case against the Bill and Government Members had found our arguments overwhelming, they might have said, ``This is something up with which we cannot put. Of course, it appears that there is no sign of that happening today.

Mike Gapes: Is the hon. Gentleman arguing that we should vote to reject the Bill?

Gerald Howarth: Perhaps the hon. Gentleman would be kind enough to listen. I said that the format of the Bill allows Parliament to reject the treaty. Parliament cannot amend the treaty, but it can say to the Government, ``We do not like the Bill, and we feel that it should be rejected''. In that regard, an interesting comparison can be made with much EU legislation, which, as we know, is enacted without Parliament's having any say. By and large, EU legislation is unamendable and even unrejectable.
 I simply want strongly to reinforce the arguments of my hon. Friend the Member for Reigate. This modest new clause would allow Parliament to reject an amendment to the treaty that was subsequently approved. In response to a report from the Select Committee on Procedure, entitled ``Parliamentary Scrutiny of Treaties'', the Government acknowledged that further development might be useful, and they accepted some of the Committee's recommendations. As Library research paper 01/39 points out, the Government said: 
 ``The Government is happy to undertake normally to provide the opportunity for the debate of any treaty involving major political, military or diplomatic issues''— 
with the following particular caveat— 
``if the relevant select committee and the Liaison Committee so request.'' 
That is an important acceptance by the Government of the principle that such major issues should properly be considered by Parliament. 
 There is no doubt that the Minister has referred to a megacourt for megacrimes from the outset. The ICC is a substantial supranational body, and the Government have sought constantly to reassure us that if it develops over the years in the way that they envisage, our concerns should prove groundless. However, substantial and fundamental amendments might be made to the treaty in the teeth of opposition from a future Government, so it is right and proper for all who believe that far too much power has transferred from this elected Parliament to the Executive to argue that accepting the new clause would be in the interests of our country, and of the armed forces that are uppermost in my mind.

Ross Cranston: I have two main points to make. First, as we have said on previous occasions, any amendments to the ICC statute would not automatically have effect in our law without legislation. If key changes were made to the statute in relation to, say, new crimes or different arrest and transfer procedures, the Executive would have to seek parliamentary approval. A fundamental rule in our law states that, if treaties are to have effect in domestic law, there must be legislation.
 The debate has proceeded on the assumption that any amendment would not require legislation, but that is not right. If there were to be major changes, we would have to return with a new Bill. The standard practice of all Governments is never to undertake legal obligations under a treaty that require implementation in domestic law without first ensuring that the necessary legislation is in place. We would therefore have to legislate again before we notified the UN of our formal acceptance of future amendments to the statute. 
 The hon. Member for Reigate mentioned the seven-eighths provision, a subject to which I am sure that we will return. We think that that is a high proportion of states parties. For new crimes, an additional protection exists in article 121.5. We to expect to play a prominent part in the negotiating process and to have a strong influence over amendments to the statute.

Crispin Blunt: The Solicitor-General is correct about the elements of crimes that must be included in domestic legislation. I accept that argument. He is talking about amendments, which require a seven-eighths majority, that concern the nature of crimes. One of the greatest concerns about the operation of the court is how the institution will work. Amendments to the court of an institutional nature will require no changes in domestic legislation and, as stated in article 122.2, require only
``a two-thirds majority of States Parties. Such amendments shall enter into force for all states parties sixth months after their adoption by the Assembly or, as the case may be, by the Conference.'' 
On that matter, Parliament must properly be consulted.

Ross Cranston: That leads to the second major point about the approach to treaties. The right hon. Member for Caithness, Sutherland and Easter Ross was correct when he said that the hon. Member for Reigate was trying to overturn our constitutional provisions—I suspect by a little breeze, rather than by a side wind. The point is that the Executive have a long-standing role in negotiating treaties, which includes negotiating amendments to treaties. Inasmuch as amendments to treaties do not require legislation, procedures exist, such as the Ponsonby rule, which have been the subject of discussion. The hon. Member for Aldershot (Mr. Howarth) also referred to the Government's response to the report by the Procedure Committee. I reiterate that we remain open to considering ways of contributing to the efficient and effective scrutiny of treaties by Parliament. That is an argument for another day, rather than one in relation to the Bill.
 To summarise, major changes concerning new crimes and the warrant-surrender procedure would require us to return to those matters. There is still a possibility for Parliament to examine other changes and express its views. Perhaps parliamentary procedure rules need to be changed; that is matter to which we are alive and are happy to consider, but in a different context.

Crispin Blunt: I listened to the Solicitor-General's arguments and have not found them particularly strong. A gale of an argument has blown a hole in his position on institutional changes to the court. Such changes can now be approved by a two-thirds majority of states parties. That could amount to a fraction of the population represented by those states, compared to the population of countries outvoted, and that is a matter of principle that should not be avoided in identifying particular institutions of the court. The Government would have such changes forced on them under the statute, and there would be no provision to return to Parliament to obtain parliamentary approval of them. The Solicitor-General's only argument is that that is an argument for another day and that we are not in an appropriate forum in which to make such a case. That is not good enough. What is wrong with deciding the issue here? The Bill has immense importance for the future of international jurisprudence of the most serious crimes.
 The right hon. Member for Caithness, Sutherland and Easter Ross said on Second Reading that the Bill is among the most important that he has dealt with in his 35 years in the House of Commons. There is nothing wrong with it being the vehicle by which Parliament gets off its knees from before the Executive and says, ``No, we will insist on bringing back the Executive to seek parliamentary approval for changes to this immensely important statute.'' I listened to the arguments of the right hon. Gentleman and I intervened on him a couple of times. He accepted the principle of what I am seeking to achieve, and I am grateful for that support—although it became clear that I would receive from him every assistance short of practical help.

Robert Maclennan: For the avoidance of doubt, my sympathy was for the idea of improving scrutiny by Parliament, not for the idea of giving Parliament the power to stop the changes.

Crispin Blunt: That is an extremely odd position to take. The Executive are in Parliament and accountable to Parliament, so if Parliament wants to stop the changes taking place, it should be able to do so. The right hon. Gentleman explained that his arguments were a halfway house, but I fear that he is perched so firmly on the fence that the iron has entered his soul. That is a most uncharacteristic position for him, although not for his party. I shall go along with the Solicitor-General in one respect and accept that this might be an argument for another day, and I fully intend to return to the matter on Report. I beg to ask leave to withdraw the new clause.
 Motion and clause, by leave, withdrawn.

Frank Cook: If there are no objections, I shall ask the Committee whether clauses 27 to 48 inclusive should stand part of the Bill.

Edward Garnier: On a point of order, Mr. Cook. Together with the schedules?

Frank Cook: Yes, indeed.
 Clauses 27 and 28 ordered to stand part of the Bill. 
 Schedule 3 agreed to. 
 Clauses 29 to 34 ordered to stand part of the Bill. 
 Schedule 4 agreed to. 
 Clauses 35 to 37 ordered to stand part of the Bill. 
 Schedule 5 agreed to. 
 Clause 38 ordered to stand part of the Bill. 
 Schedule 6 agreed to. 
 Clauses 39 to 42 ordered to stand part of the Bill. 
 Schedule 7 agreed to. 
 Clauses 43 to 48 ordered to stand part of the Bill.

Clause 49 - Power to make provision for enforcement of other orders

Cheryl Gillan: I beg to move amendment No. 59, in page 25, line 14, at end insert
`, and
(c) orders relating to the payment of reparations to victims of crimes within the jurisdiction of the Court and from the Trust Fund established under Article 79'.
 In speaking briefly to the amendment, I take the opportunity to pay tribute to some of the organisations that have taken the time and trouble to take a great interest in the passage of the Bill—Simon Burrell at the One World Trust, Clare Crawford at Save the Children and Christopher Hall at Amnesty International, as well as Christian Mitchell, who has been very instrumental in helping to prepare for the scrutiny of the Bill. I particularly pay tribute to Sherman Carroll of the Medical Foundation for the Care of Victims of Torture, who has been pressing for the amendment and has been the inspiration behind it. 
 Clause 49 empowers the Secretary of State to make regulations to enforce fines, forfeitures or reparation orders issued by the ICC against a convicted individual. The Foreign Secretary takes credit for the stand that he supported taken by the British delegation at the Rome conference in 1998, especially on article 75 of the statute, which covers reparations to victims. However, article 79 envisages the establishment of a trust fund by decision of the assembly of states parties for the benefit of victims of crimes within the jurisdiction of the court and of the families of such victims. 
 Article 79 provides that the trust fund will be established by a decision-making process, and that the court may order money or other property to be collected through the fines or forfeiture, which will be transferred by order of the court to the trust fund. The trust fund itself was to be managed according to criteria that are eventually to be determined by the assembly of states parties. Given that the Foreign Secretary was keen to claim credit for the British stance over reparations, it is surprising that clause 49 should be silent on the United Nations trust fund as laid out in article 79. 
 Clause 49 will lead to a number of regulations, most being related to the fines and forfeitures to be levied against convicted perpetrators, and others making provision for reparations to victims. I know that the Medical Foundation and other bodies would welcome the opportunity to comment on the regulations. I may not be in the Room when the Minister responds to the amendment, but I hope that he will offer such an opportunity to the Medical Foundation and its representatives. 
 The foundation has examined and treated about 25,000 survivors of torture and organised violence since 1986, and last year 5,026 new patients from 96 countries sought its help. It hopes that the regulations will reflect the long-term need for rehabilitation of the many thousands of survivors of torture and other gross violations of human rights who reside within the jurisdiction of our courts.

John Battle: I would compliment organisations such as Amnesty International, Save the Children and the Medical Foundation. However, I remind the hon. Lady that the Bill is part of a legislative process. To the best of my knowledge, those organisations have been kept in close contact throughout the formation of the legislation. They were engaged in the consultation process, and they also had access to officials in the other place as the legislative process went through the other place and the House of Commons. They have had at least two or three meetings with officials during the process. We will do our best to meet their concerns.

Cheryl Gillan: I am grateful for that intervention. I do not complain about access. However, the Minister has still not satisfied some of their concerns. I therefore feel justified in putting their concerns on the record. Indeed, it seems that no one else will speak for them, so I am obliged to put forward what I believe are sensible recommendations. I know that they have urged the Government to refer explicitly in the Bill to the future of the UN trust fund. They believe that the financial assets of the convicted perpetrator will often not be enough to met the compensation needs of victims and their families.
 The Canadian Government have already created such a fund in the context of the ICC. If Canada can do it, why cannot we? If Canada can do it, why cannot we? The Medical Foundation and others certainly believe that the Government should do something similar. Even if the Minister does not want to create a separate British trust fund, the Bill should at least refer to the international fund and to article 79. There should certainly have been an indication of our intention to contribute to such a fund, because the finances are unclear. 
 It is not only the Medical Foundation that has voiced concerns. Amnesty International's copious and detailed notes on the ICC state: 
 ``The ICC can also award compensation to victims from a special Trust Fund. Canada's implementing legislation provides for a national Crimes Against Humanity Fund. This will receive money obtained through enforcement of ICC orders and voluntary donations. Canada's Attorney General is empowered to make payments from this Fund to the ICC's Trust Fund, to victims and to their families. We are disappointed that the UK Government has not followed this positive example.'' 
This is not the first time that the matter has been raised with the Government; it was raised throughout the consultation process, although I felt that that process was short and rushed, and it resulted in a fairly scrappy document being prepared for January 2001. There is only a small reference to the issue in the discussion of clause 46. Paragraph 64 deals with the Government's response and states: 
 ``The criminal injuries compensation scheme would also apply if the crimes of violence were committed in the UK. In view of the domestic mechanisms already in place, the Government sees no practical benefit in creating a domestic ICC Trust Fund.'' 
That is not in the spirit of the negotiations, the fund's inclusion in the originating statute or the way in which organisations carried out their lobbying. I hope that the Minister will not be as brief as the Government were in their response to the consultation process. 
 The proposed Scottish legislation is also silent on the fund. It would be helpful if the Minister could lay out the position in Scotland as regards the trust fund and reparations and explain how that will dovetail with the existing provisions. 
 I will not be present for what I trust will be the substantive part of the Minister's response, although he might get a couple of minutes if I sit down now. However, my hon. and learned Friend the Member for Harborough will pursue the matter. If the Minister does not satisfy us, we might need to put the matter to a vote. 
 I am glad to have had the opportunity to speak about this issue on behalf of the Medical Foundation and others who have found that their requests have fallen on deaf ears, despite consultation with the Minister. I understand that he might be hidebound and unable to alter the Bill because of his riding orders, but he should examine the issue seriously, particularly in the light of the well-meaning and reasonable representations that have been made to the Government.

Edward Garnier: I want to ask one or two questions about article 79 of the statute and about the trust fund set up by treaty. What would we accept as a trust fund under English law? Are there trustees and so forth, or are we talking simply about a bank account that is administered by the ICC? Many things are called trusts although they are not trusts in law. The National Trust is a classic example because it looks like a trust but is simply an organisation. It is perhaps a corporate organisation, but it is not a trust.
 Secondly, if it is a trust fund in the English sense, where will the money be deposited? Will it be invested, or will it be kept in an interest-accruing account; and, if so, where will that account be held? If the trust is allowed to make investments, where will those investments be made? Will they be made through the London stock exchange, the Frankfurt exchange or internationally through a number of exchanges? A number of obvious questions occur to one as one investigates the trust fund. 
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee, without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.